Dyspeptic Marine wife/tech wench attempts to enlighten the great unwashed of the blogosphere while dodging snarky commentary from the local knavery.

April 18, 2005

What If They Held A Revolution And Nobody Came?

On the eve of the big showdown at the Filibuster Corral, the intrepid folks at the NY Times conveniently discover and expose yet another evil plot to undermine the institutions we hold dear...

No silly... not the neo-cons. That's so last week. This is far, far worse. It's the constitution-in-exile movement, or what Jeffrey Rosen calls "the unregulated offensive". The evil puppetmaster of this sinister movement is (supposedly) that rotund reprobate who sends little frissons of horror up the spines of feminists everywhere. Rosen even starts off with a bit of dramatic foreshadowing to set the mood:

If you think back to Clarence Thomas's Supreme Court confirmation hearings in 1991, what most likely comes to mind are the explosive allegations of sexual harassment made by the law professor Anita Hill. Years from now, however, when observers of the court look back on the hearings, they may well focus on a clash that preceded Hill's accusations -- an acrimonious exchange that few remember today.

Early in the hearings, Joseph Biden, the Delaware Democrat who was chairman of the Senate Judiciary Committee, voiced a concern about Thomas's judicial philosophy. In particular, he singled out a speech that Thomas gave in 1987 in which he expressed an affinity for the ideas of legal scholars like Richard A. Epstein. A law professor at the University of Chicago, Epstein was notorious in legal circles for his thesis that many of the laws underpinning the modern welfare state are unconstitutional. Thomas tried to assure Biden that he was interested in ideas like Epstein's only as a matter of ''political theory'' and that he would not actually implement them as a Supreme Court justice. Biden, apparently unpersuaded, picked up a copy of Epstein's 1985 book, ''Takings: Private Property and the Power of Eminent Domain,'' and theatrically waved it in the air. Anyone who embraced the book's extreme thesis, he seemed to be suggesting, was unfit to sit on the court.

Having properly framed the issue for us, Mr. Rosen goes on to tell us that Justice Thomas did, indeed, subscribe to Epstein's "extreme" ideas, leaning on them heavily in his opinion in US v. Lopez in 1995. From this, we are left to infer that he must, after all, have been unfit to ascend to the bench. But it gets worse: according to Rosen, there is an entire underground movement afoot to reverse the depredations of the New Deal and restore the Constitution to its former glory:

But as Thomas's presence on the court suggests, it is perhaps just as likely that the next justice -- or chief justice -- will be sympathetic to the less well-known but increasingly active conservative judicial movement that Epstein represents. It is sometimes known as the Constitution in Exile movement, after a phrase introduced in 1995 by Douglas Ginsburg, a judge on the United States Court of Appeals for the D.C. Circuit. (Ginsburg is probably best known as the Supreme Court nominee, put forward by Ronald Reagan, who withdrew after confessing to having smoked marijuana.) By ''Constitution in Exile,'' Ginsburg meant to identify legal doctrines that established firm limitations on state and federal power before the New Deal. Unlike many originalists, most adherents of the Constitution in Exile movement are not especially concerned about states' rights or judicial deference to legislatures; instead, they encourage judges to strike down laws on behalf of rights that don't appear explicitly in the Constitution. In addition to the scholars who articulate the movement's ideals and the judges who sympathize with them, the Constitution in Exile is defended by a litigation arm, consisting of dozens of self-styled ''freedom-based'' public-interest law firms that bring cases in state and federal courts, including the Supreme Court.

Critics of the movement note, with some anxiety, that it has no shortage of targets. Cass Sunstein, a law professor at the University of Chicago (and a longtime colleague of Epstein's), will soon publish a book on the Constitution in Exile movement called ''Fundamentally Wrong.'' As Sunstein, who describes himself as a moderate, recently explained to me, success, as the movement defines it, would mean that ''many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional. It would mean that the Social Security Act would not only be under political but also constitutional stress. Many of the Constitution in Exile people think there can't be independent regulatory commissions, so the Security and Exchange Commission and maybe even the Federal Reserve would be in trouble. Some applications of the Endangered Species Act and Clean Water Act would be struck down as beyond Congress's commerce power.'' In what Sunstein described as the ''extreme nightmare scenario,'' the right of individuals to freedom of contract would be so vigorously interpreted that minimum-wage and maximum-hour laws would also be jeopardized.

B..b...but, you say, I'm a federalist/conservative/libertarian and I've never even heard of this "movement"! Several other people apparently didn't get the memo either. Orin Kerr comments:

In my view, the problem with Rosen's essay is that it tries to portray the decades-old writings of a small number of scholars and activists as an existing and influential "movement." I don't think the evidence adds up. The handful of scholars and activists that are supposed to make up this alleged movement are pretty far removed from the set of players in the Bush Administration that are actually setting policy and selecting judges these days. Maybe the Reagan Justice Department was enthralled with the writings of Richard Epstein; the Bush 43 Justice Department isn't.

He looks at part of Rosen's 'evidence':

The influence of the Constitution in Exile movement . . is not always clear, since the concerns of the White House often overlap with concerns of conservatives broadly sympathetic to business interests or the concerns of more traditional federalists. ''If you mentioned the phrase 'Constitution in Exile' in White House meetings I was in, no one would know what the hell you were talking about,'' a former White House official, who spoke on condition of anonymity because of the sensitivity of the topic, told me. ''But a lot of people believe in the principles of the movement without knowing the phrase. And the nominees will reflect that.''

I love it: "Lots of people belong to the conspiracy: it's just so secret, they don't realize they belong!" Kerr sums it up:

So the best we can do is get the view of one anonymous person that other mostly unnamed people believe in a set of principles that the anonymous person says match the views of this alleged movement? Surely the last four years of Bush 43 would have provided more concrete evidence than that.

In my experience, conservatives much more often invoke Scalia's distinction between the "living constitution" advocated by liberals (like Sunstein) and the "dead constitution" advocated by conservatives (like Scalia .. or me, for whatever it's worth). Note that this dichotomy also some rhetorical power. One imagines Dr. Frankenstein (i.e., the Supreme Court) standing above the dead Constitution sprawled out on slab. Throw the switch in time that saved nine, and "It's Alive!" So we spin the "living Constitution" as "Frankenstein's Monster." Heh.

In a constantly-changing world, it's good to know that there are some things you can still set your clock by. One being that if a political battle is in the offing, the Times won't hesitate to weigh in on the side of the Democrats. Should the news cycle prove sluggish, one can always mine the archives and uncover a decades-old conspiracy.

Tainting future Bush judicial picks with some kind of shadowy extremism might just influence a future Senate vote. All the better if the shadowy movement doesn't actually exist: the harder it is to find the movement, the harder it is to prove that Bush's pick has no connection to it.

We'd tell you more, but then we'd have to kill you.

Posted by Cassandra at April 18, 2005 06:18 AM

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